State v. Hoffman

• Decision Date: 09 May 1927
• Citation: 294 S.W. 429
• Parties: STATE ex rel. RUCKER, Pros. Atty., v. HOFFMAN, Circuit Judge.
• Court: Missouri Court of Appeals

294 S.W. 429

STATE ex rel. RUCKER, Pros. Atty., v. HOFFMAN, Circuit Judge.

No. 15842.

Kansas City Court of Appeals. Missouri.

May 9, 1927.

Appeal from Circuit Court, Pettis County; Robert M. Reynolds, Special Judge.

Suit by the State, on the relation of Roy W. Rucker, Prosecuting Attorney of Pettis County, against Dimmitt Hoffman, Judge of the Thirtieth Judicial Circuit of Missouri. Judgment for defendant, and plaintiff appealed to the Supreme Court, which transferred the case to the Court of Appeals (313 Mo. 667, 288 S. W. 16). Affirmed.

Roy W. Rucker, of Sedalia, for appellant. H. B. Shain and Paul Barnett, both of Sedalia, for respondent.

North Todd Gentry, Atty. Gen., amicus curiae.

BARKER, Special Judge.

The prosecuting attorney of Pettis county, Mo., instituted in the circuit court of that county an injunction suit to enjoin the circuit judge of the Thirtieth judicial circuit, which circuit comprises Pettis county alone, from approving and certifying the monthly salary voucher of the official court reporter of that circuit in an amount exceeding $2,000 per annum.

The cause was heard by the circuit judge from an adjoining circuit, and at the conclusion the injunction was denied and plaintiff was granted an appeal to the Supreme Court. That court held that the circuit judge was not a state officer and that it had no jurisdiction under article 6, § 12, of the Constitution of Missouri. The case was thereupon transferred to this court.

The prosecuting attorney instituted his suit upon the theory that the population of the Thirtieth judicial circuit, as disclosed by the federal census of 1920, was 35,813, that under the provisions of section 12670, R. S. of Mo. 1919, the salary of such reporter was fixed at $2,000 per annum, and that the act of the circuit judge in approving the voucher for $2,500 was improper.

The cause was tried upon this agreed statement of facts:

"It is stipulated and agreed by and between the parties hereto:

"That plaintiff is the duly elected, qualified, and acting prosecuting attorney of Pettis county, Mo.

"That defendant is the duly elected, qualified, and acting judge of the Thirtieth judicial circuit of Missouri, and that defendant has been judge of said circuit since the 1st day of January, 1923.

"That the Thirtieth judicial circuit of Missouri consists of the county of Pettis.

"That the population of the Thirtieth judicial circuit of Missouri, as disclosed by the federal decennial census of 1920, is 35,813.

"That there were east at the last general election in Pettis county, Mo., more than 15,000 votes.

"That Roy Snyder was duly appointed by Hon. Dimmitt Hoffman, judge, as the official court reporter of the Thirtieth judicial circuit of Missouri, in January, 1923.

"That, since the appointment of said Roy Snyder as official court reporter of said circuit, Hon. Dimmitt Hoffman, judge, has been issuing certificates each month as said judge, directing the treasurer of Pettis county, Mo., to pay the said Roy Snyder, as his salary as official reporter of said circuit, the sum of $208.33 monthly, or on the basis of an annual salary of $2,500.

"That Hon. Dimmitt Hoffman, judge, has continued to issue certificates each month, as said judge, directing the treasurer of Pettis county, Mo., to pay the said Roy Snyder, as his salary as official reporter of said court, the sum of $208.33 monthly since the institution of this suit, and that, unless restrained from so doing, Hon. Dimmitt Hoffman, judge, will continue to issue said certificates in the sum of $208.33 each month."

The trial court rendered the following opinion:

"Gentlemen, I have considered the argument in the case, and I have reached the conclusion that the injunction should be denied. I am willing to admit that the matter is not without difficulty. Section 12670, with reference to stenographers, provides as follows: `Each court reporter shall receive salary as follows: In cities or counties which now have and such as may hereafter have a population of sixty thousand or more, an annual salary of three thousand dollars, payable in equal monthly installments out of the city or county treasury on the certificate of the judge of the court in whose division such court reporter is employed,' etc.

"Now it simply says that `in counties having a population of 45,000 and less than 60,000' —it does not say how that population is to be determined, whether by the census or how and the only other matter I find that would be of any aid in determining or reaching what amount the stenographer of this county should receive would be section 11016, which says: 'For the purpose of determining the population of any county in this state, as a basis for ascertaining the salary of any county officer for any year, or the amount of fees he may retain, or the amount he shall be allowed to pay for deputies or assistants, the highest number of votes cast at the last previous general election, whether heretofore or hereafter held in such county, for any office, shall be multiplied by five, and the result shall be considered and held for the purpose aforesaid as the true population of such county.'

"The stenographer statute refers to population. Now section 11016 says that for the purpose of determining the population of any county for the basis of ascertaining the salary or amount of fees he may retain, or amount he should be allowed to pay for deputies or assistants, the vote of the last previous general election must be taken as the basis. That is, whenever it is on a population basis that is the way it shall be determined. Now I have been unable and there has not been cited to me any other statute by which you could apply any different rule.

"Now, it is argued perhaps a stenographer isn't "a county officer; well, that might be true in some respects, but for the purpose of determining the salary being paid out of the county treasury, necessarily he must be put on that basis. There is no other way or no other manner to determine it that I can find, so it appears to me that he comes within the provisions of this section; that is, the salary shall be paid out of the county treasury, based on the population of the county, and in order to determine what that salary shall be, this section 11016 is provided. It is broad, for the purpose of determining the population of Pettis county now as a basis for ascertaining the

salary of any county officer, he being paid out of the treasury of Pettis county, section 11016 controls.

"By Mr. Rucker: May I interrupt you? What is your honor's view about the Geaslin case, in which the Supreme Court said three times, that for the purpose of determining the population in order to determine the salary of the court reporter, the census shall be referred to?

"The Court: They took the blue book, they called it the census, the vote and everything is in the blue book, as well as the census. Anyhow, while they took the census in that case this question did not seem to be urged and this defendant was not a party; this section did not seem to be called to their attention, and was not passed on in that case. That is my view of that; he wasn't a party to that proceeding, and he was not bound by it, and neither was section 11016 brought into that case.

"By Mr. Rucker: But he was an official reporter.

"The Court: Yes, sir. However, I wouldn't feel like shutting the defendant out from the benefit of that statute until the Supreme Court says so; that is the way I look at it. I will say, further, I do not see where I have any jurisdiction in a matter of this kind—don't see where one circuit judge can tell another what to do. If it was a mere personal matter in which Judge Hoffman was interested, aside from official duties, it would be all right to have another judge try, this case; but here is an official matter, but the question of jurisdiction is not raised before me, and I do not place my decision on that ground. The injunction is denied; finding for the defendant."

Obviously, the sole question to be determined is the basis of calculation to be used in determining the salary of the court reporter of the Thirtieth judicial circuit. Section 12670 provides a salary for such reporter "in cities, or counties which now have and such as may hereafter have a population of sixty thousand or more, an annual salary of three thousand dollars. * * * In counties having a population of less than forty-five thousand inhabitants, an annual salary of two thousand dollars."

Query: For the purpose of determining this salary what is the population of Pettis county? Its census population is 35,813, and if this is the guide, the salary is $2,000. There were cast at the last general election in such county more than 15,000 votes, and if multiplied by 5, as provided by section 11016, R. S. of Mo. 1919, Pettis county has a population of 75,000 inhabitants. Shall this salary be determined by the census of 1920 or by multiplying by 5 the highest number of votes cast at the last general election previous thereto?

If such reporter is a county officer section 11016 provides as a basis of ascertaining his salary that the highest number of votes cast at the last previous general election be multiplied by 5, which would give Pettis county a population of 75,000. No provision made in section 12670 for ascertaining populotion. Section 7057, R. S. of Mo. 1919, does not apply because of section 11016.

Otto, J., speaking for the Supreme Court recently in the case of Hastings v. Jasper County, 282 S. W. 700, held that a probation officer appointed by the circuit court sitting as a juvenile court in Jasper county was a county officer. Such county comprises a judicial circuit as does Pettis county, and under the authority of this case we must hold that the official reporter of the Thirtieth judicial circuit comprising Pettis county alone is a county officer and his salary is governed by section 11016. State ex rel. v. Imel, 242 Mo. 293, 146 S. W....